Citation Nr: 0014830
Decision Date: 06/06/00 Archive Date: 06/15/00
DOCKET NO. 97-26 249 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an initial disability rating higher than
10 percent for bipolar disorder prior to March 24, 1998.
2. Entitlement to an initial disability rating higher than
30 percent for bipolar disorder from March 24, 1998.
3. Entitlement to an initial disability rating higher than
10 percent for hand eczema secondary to contact dermatitis,
xerosis, and post-inflammatory hyperpigmentation.
4. Entitlement to an initial disability rating higher than
10 percent for right knee internal derangement with cartilage
dysfunction.
5. Entitlement to service connection for a right foot
condition, to include residuals of contusion and a skin mass.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
M. L. Kane, Associate Counsel
INTRODUCTION
The veteran had active military service from February 1994 to
January 1997.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1997 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida, which, in pertinent part, granted
service connection for major depression, with assignment of a
zero percent disability rating; granted service connection
for hand eczema secondary to contact dermatitis, with
assignment of a 10 percent disability rating; granted service
connection for internal derangement of the right knee, with
assignment of a 10 percent disability rating; and denied
service connection for a right foot condition, to include
residuals of a contusion and a skin mass.
Thereafter, an August 1997 rating decision assigned a 10
percent disability rating for the veteran's service-connected
major depression. A June 1998 rating decision changed the
diagnosis for her service-connected psychiatric disorder to
bipolar disorder and assigned a 30 percent disability rating
as of March 24, 1998. However, this was not a full grant of
the benefit sought on appeal because a higher disability
rating is available. On a claim for an original or an
increased rating, the claimant is generally presumed to be
seeking the maximum benefit allowed by law and regulation,
and such a claim remains in appellate status where a
subsequent rating decision awarded a higher rating, but less
than the maximum available benefit. AB v. Brown, 6 Vet.
App. 35, 38 (1993). Therefore, this issue remains before the
Board. Since the 30 percent disability rating for the
veteran's psychiatric condition was assigned from March 24,
1998, the issues on appeal have been rephrased as shown
above.
The March 1997 rating decision also denied service connection
for tinea pedis, xerosis, and post-inflammatory
hyperpigmentation, and the veteran perfected her appeal as to
these issues. During the pendency of this appeal, a rating
decision of October 1998 granted service connection for tinea
pedis and assigned a 10 percent disability rating for this
disorder. The veteran has not indicated disagreement with
that decision, and this issue is not before the Board. See
Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (The issue
of the amount of compensation for a service-connected
disability is a different issue than entitlement to service
connection for that disability, and a second notice of
disagreement must be filed by the veteran in order to
initiate appellate review concerning the issue of
compensation.) Also, a July 1999 supplemental statement of
the case indicated that the veteran's service-connected hand
eczema was secondary to contact dermatitis, xerosis, and
post-inflammatory hyperpigmentation, thereby, in effect, also
granting service connection for these conditions. Therefore,
these issues are also not before the Board.
REMAND
In her substantive appeals to the Board, the veteran
requested personal hearings before a Member of the Board. In
the 1997 appeal, she requested a hearing at the RO, while she
requested a hearing in Washington, D.C., in the 1998 appeal.
She was only provided a local hearing in 1999. In an April
2000 letter, she was asked to clarify whether she still
wanted a hearing before the Board, and, if so, where. She
was informed that if she did not respond, the Board would
assume that she wanted a hearing at the RO and remand her
case for the purpose of providing her such a hearing. The
veteran did not respond. Therefore, since the veteran has
not been provided a hearing in accordance with her request,
it is appropriate to remand this case for due process
reasons.
Accordingly, this case is REMANDED for the following:
Schedule the veteran for a hearing before a
Member of the Board at the RO, and notify her
of the scheduled hearing at the latest
address of record. This hearing is to be
scheduled in accordance with applicable law.
Thereafter, the case should be returned to the Board for
further appellate consideration. The veteran has the right
to submit additional evidence and argument on the matters
that the Board has remanded to the regional office.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV,
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directs the ROs to provide expeditious handling of all cases
that have been remanded by the Board and the Court. See M21-
1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).